Rule 12 came before the Committee at the September 2010 meeting.
Assistant Cass County
State's Attorney Kim Hegvik suggested that the rule be amended to add the language
"to the
extent not privileged or prohibited by statute, rule, or regulation" to subdivision (b) of the
rule, which governs discovery in delinquency and unruly child proceedings. At the
September meeting, the Committee asked staff to perform additional research on whether the
recommended language should be added to the rule.

Rule 12, as originally drafted and as
approved by the Juvenile Policy Board, was intended
to be a fairly simple rule that would apply to all juvenile proceedings. It did not include a
separate section covering discovery in delinquency and unruly child proceedings. The
language "to the extent not
privileged or prohibited by statute, rule, or regulation" was part
of the original proposal's general provision governing discovery requests.

When this Committee reviewed the rule
in May 2009, it identified problems with the rule
and recommended that the Supreme Court not approve it. In particular, the Committee
determined that the rule should have specific limits on
discovery in delinquency and unruly
child proceedings and that specific procedures for discovery
should apply in these
proceedings. The Supreme Court accepted the Committee's recommendations and assigned
staff to draft additional language for the rule.

Staff drafted a new subdivision (b) for the rule based on
N.D.R.Crim.P. 16 and Minn.
R.Juv.Del.P. 10.04, 10.05 and 10.06. The final version of Rule 12 approved by the Court
contained the new subdivision (b). Neither the Juvenile Policy Board nor the Joint Procedure
Committee reviewed the final version of Rule 12 prior to its adoption.

Ms. Hegvik contacted staff to explain why the "to the extent not privileged or prohibited
by statute, rule, or regulation" limitation should be added to Rule 12(b). She said
the rule
mandates disclosure of some information that the state is barred by law from disclosing. She
said a recent case involved a student facing expulsion from school. An expulsion hearing
was held and witnesses were called. The hearing was confidential under the federal Family
Educational Rights and Privacy Act. Yet, Rule 12(b)(1)(A) seems to mandate disclosure of
witness information from the hearing in the subsequent juvenile proceeding. Likewise, Rule
12(b)(1)(D) requires the disclosure of reports of examinations and tests, while the Health
Insurance Portability and Accountability Act may bar the disclosure of this information in
some cases.

While Rule 12(b) does not contain the "to the extent not privileged or prohibited by statute,
rule, or regulation"
language, it does contain some limitations on
discovery:

- Rule 12(b)(1)(c) puts conditions on the disclosure of documents and
tangible objects by
the prosecution;